*1 NORMAL, TOWN OF BOWSKY, Plaintiff-Appellant, LESLIE L. Defend-

ant-Appellee. Fourth District No. 4 — 85—0557 17, 1986.

Opinion April filed GREEN, J., specially concurring. Normal, Greenburg, appellant.

Todd appellee. No brief filed for of the court: delivered the opinion

JUSTICE MORTHLAND a Normal town ordi- violating was acquitted The defendant beverages by person of alcoholic prohibits possession nance which and we reverse. appeals, under 21. The town Although parties the defendant did not file a on appeal, brief agreed trial, to a statement facts. At Normal officer Paul J. police Lehmann testified that he had on March observed give defendant to another man in return for a at a money bag brown liquor store Normal. The defendant then entered an automobile and from away drove store. The officer testified that he noticed *2 and, defendant’s appeared plate vehicle to have no license accord- vehicle, he ingly, stopped the defendant’s car. After he stopped the officer stated that he determined that it had a valid license-ap- plied-for During sticker. the course of the stop, officer determined that the paper bag brown he had earlier the defendant car- observed rying large contained a of and a of bottle beer bottle wine. When asked produce identification, the defendant the officer a showed driver’s license which indicated his less than 21 years.

The defendant essentially corroborated the officer’s testimony. However, he also testified that he bought had the alcohol for his 24- sister, year-old who had in stayed the car while the defendant went into the store.

The defendant’s sister also testified. She stated that the beer and wine were for her use and that she had asked her brother to attempt to purchase the alcohol for her because she had no identification with her. She stated she knew from experience that it was pur- difficult to chase alcohol in the town of Normal without identification. rested,

After both sides the trial court ruled that the defendant “merely conduit” and not in possession of alcohol. Accordingly, the court found the defendant not guilty. appeal, On ar- plaintiff gues that the trial court’s ruling was erroneous as a matter of law and urges this court to enter in judgment favor of the of Nor- town mal.

The defendant has not filed a brief in the present appeal. However, record, here, when is simple and the errors asserted can be addressed assistance, without the appellee’s this court will de cide the appeal. First Capitol Mortgage Corp. v. Talandis Construc tion Corp. (1976), 128, 63 Ill. 2d 345 N.E.2d 493.

Before addressing the merits of this we first de appeal, must termine whether town of Normal may appeal trial court’s ac quittal of a defendant charged with ordinance. violating municipal In Waller 387, v. Florida 397 U.S. 25 L. Ed. 2d 90 S. Ct. 1184, the United States Supreme Court held that a defendant could not be. tried State court after having been tried in a munici already pal court for the same suggested, offense. This court has previously dicta, by of that the way holding Waller would an preclude appeal (City similar to the one us. prosecution a case before of 1357.) 388 N.E.2d App. v. 71 Ill. 3d Springfield Ushman for the and a second trial prohibit appeal Waller would Undoubtedly, prosecutions coequal if Illinois viewed ordinance plaintiff municipal has However, the Illinois prosecutions. Supreme with criminal as a prosecution ordinance municipal characterized repeatedly the characteristics of both which shares quasi-criminal proceeding v. Fa- Park Forest prosecution. (Village civil action and a criminal of 59; Forst v. Village N.E.2d Park (1976), 64 Ill. 2d gan 868; Village Maywood 230 N.E.2d Bragg (1967), 38 Ill. 2d Fagan note that 233.) 10 Ill. 2d 139 N.E.2d We Houston in Waller opinion States Court’s post-dates United of a acquittal a defendant’s appeal conclude that the prosecution may and Il- with the United States ordinance violation consistent municipal See also double proscriptions against jeopardy. linois constitutions’ 776; N.E.2d 117 Ill. 3d Chicago App. v. Prus City of 935, 390 71 Ill. 3d Wightman (1979), App. City Highwood (1976), 39 Ill. 588; Peoria v. Henderson City N.E.2d merits, applied that the trial court to the conclude Turning we acquitting of the the defendant. law interpretation erroneous that: provides prosecuted *3 the defendant was ordinance under which 21 of any person for under “It shall be unlawful a of alcoholic or have gift liquor or purchase, accept years Normal, Ill., of in his or her Town possession.” alcoholic liquor amended). as 3(2) (1969 Code sec. Municipal 17.1— when they of contraband “possession” In one has general, as well as object control over the have immediate and exclusive (People at issue. v. Howard of of the substance knowledge the nature Moreover, when a stat 262.) 330 N.E.2d (1975), 29 Ill. 3d App. substance, pos the reason a defendant of a prohibits possession ute him bring unless it would within the substance is irrelevant sesses 2d 202 (1964), App. 52 People v. Garcia statutory exception. 383 (1978), 66 Ill. 269; People Molsby see also N.E.2d N.E.2d 1336. have jurisdictions courts in other that some research discloses

Our if he an grasps of liquor “in possession” defendant is not held that a See, v. Wil- e.g., it. State to drink solely container beverage alcoholic 147 563; (1928), v. Bostock P. 117 Or. 243 State liams 21 S.W.2d 173; (Mo. App. 1929), v. Nelson 402, 266 P. State Wash. 190. law, Illinois is consonant view, and one more with

The better

763 decisions such as State ex rel. Harbin State by stated 210 Harbin, a jug Ala. 97 So. 426. In was arrested with defendant However, of in his arms. he claimed defense that he did liquor therefore, not liquor, and, own the that it was “possessed but owned by his the defendant of companion. holding guilty possessing liquor, contraband Alabama Court stated that: prohibited

“The includes manu- possession any possession by dominion, or caption physical duration, of however brief and in held, whatever it capacity possession may be if be for the use, benefit, or of himself or enjoyment any person, other and not merely for the of or It purpose inspection destruction. none the less an unlawful because it is possession by per- of in mission the owner of the his liquor, pres- immediate ence. It may be conceded that such case the owner—so called—would remain possession in the of the li- constructive quor, and nevertheless his would permissive custodian have State ex rel. possession actual which the prohibits.” statute Harbin v. State 426, 426-27; Ala. So. ac- Ray (W.D. United States v. cord, Va. 270 F. 1967), Supp. We conclude that of physical puts actual control contraband one “possession” of that absent the contraband existence of some qualifier in the law at issue. the trial court Accordingly, erred ac quitting the defendant of alcoholic possessing virtue defendant’s status purported “conduit.” We reverse and remand for a new trial.

Reversed and-remanded.

WEBBER, J., concurs. GREEN,

JUSTICE specially concurring: I concur in the decision to reverse and remand. I in complete am agreement with the majority’s analysis and holding regard merits, but I do have some1'concern with the question of whether the Illinois rule that not jeopardy does attach in prosecutions munici pal ordinance violations is still viable. precedent Because Village Park Forest v. Fagan Ill. 2d *4 I must agree that still the rule is applicable at least in cases where is imprisonment not punishment a that can imposed on conviction. Accordingly, the dictum in City Springfield v. Ushman (1979), 71 112, 1357, wrote, I which indicating that the prosecution could appeal not from an acquittal such a case must be 764 not disregarded as incorrect cases where possible imprisonment (cid:127)

involved. where, here, uncertainty We must with caution as there is proceed and the benefit of question a constitutional we are without concerning The as to briefing appli- adversarial from both sides. the uncertainty (1975), cation from in Breed v. 421 arises decisions Jones jeopardy 346, 1779, L. v. Neil U.S. 44 Ed. 2d 95 S. Ct. Robinson 876, and 409 35 Ed. 2d 93 S. Ct. Waller Florida U.S. L. L. S. Ct. See 3 W. 397 U.S. Ed. 2d also Israel, 24.1(b)(1984). Procedure sec. La Fave & J. Criminal Waller, In ordinance vi- municipal a defendant was convicted of olation him for imprisoned. prosecuted and the State Subsequently, on the and him. felony imprisoned based same conduct convicted and The its on the that no dou- sought justify prosecution theory State city separate ble existed the the State were sov- jeopardy because ereignties. rejected The United States that contention State. contention was and set conviction obtained No aside the municipal prosecution made no attached to because jeopardy that Robinson, involved. only Subsequently, ordinance violation was though prior for the punishment same rule was even applied The turned only a fine. case on municipal ordinance violation was applied retroactively. whether was to be question of Waller As The not to either Waller or Fagan court did refer Robinson. as different suggests, here the reason was because plaintiff perhaps in Those cases pects the double doctrine were involved. jeopardy of a mu volved a criminal after conviction subsequent prosecution here, on a Fagan, acquittal In retrial after nicipal ordinance. the reason charge sought. Perhaps ordinance was municipal violation im was there the defendant received Waller was not cited because for the prisonment ordinance violation. event, I that Illinois has treated

In whether fact any question is, it- proceedings quasi-criminal ordinance violation cases as only self, progeny. case from Waller and its distinguish sufficient this for the Breed, juvenile adjudicated delinquent court that a held aby was double subse- placed jeopardy commission of a robbery court, robbery. quoting same That criminal quent prosecution 391, 398-99, Ed. 82 L. 303 U.S. Helvering from Mitchell critical as be- 630, 632-33, question Ct. described the 921, 58 S. in nature criminal” “essentially was ing proceeding whether L. 519, 528, 44 Ed. 2d 421 U.S. (Breed v. Jones that the of la- practice Breed indicated 1785). S. Ct. court in nature not beling juvenile controlling. not criminal proceedings *5 Here, describing proceedings quasi-criminal in nature will not proceedings control if the criminal.” full “essentially message are Breed, Robinson, and Waller is not of Fa precedent clear. The entirely gan but, controls here of the foregoing view United States decisions, interpret Fagan broadly. we should not those rare imprisonment cases where possible punishment ordinance vio (see VII, lation Ill. Const. 6(e); art. sec. Rev. Stat. ch. pars. 2—1, 2—1.1), the criminal” in proceeding may "essentially 1— 1— nature may attach. here jeopardy Our decision should not be taken as a that holding jeopardy would not attach in such situation. PELLEY, al., CHARLES L. et Appellants, Plaintiffs- v. ILLINOIS MUNICI COMPANY, PAL WATER (The Village Defendant-Appellee of Clarendon

Hills, Defendant). Second District No. 85 — 0171 Rehearing denied Opinion 16, 1986. April 1, filed May 1986.